aa CIVIL PROCEDURE Volume I! THE BAR LECTURES SERIES WILLARD B. RIANO Bar Reviewer in Remedial Law, Commercial Law and Civil Law ‘Author: Fundamentals of Civil Procedure; Evidence (A Restatement for the Bar); Civil Procedure (A Restatement for the Bary; Evidence (The Bar Lectures Series); Criminal Procedure (The Bar Lectures Series); Dean, College of Law, University of the East Former Dean & Bxecutive Dean, College of Law, San Sebustian College Recoletos- Manila Member, Remedial Law and Contmereial Law Committees, U.P. Law Center Former Professorial Lecturer, Philippine Judicial Academy, Supreme Court of the Philippines 2016 Bantam Edition Published & Ostibuted by REX Book Store 856 Ncanoe Reyes, St. Tol. Nes, 7605-67 736-3-64 1977 CA Rost Avenue Te. Nos, 735:55.27» 735-85 94 Manila, Phitppines republishing comphPhilippine Copyright 2011, 2016 by WW WILLARD B. RIANO ISBN 978-971-23-8038-9 No portion of this bock may be enpied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in honks, articles, reviews, legal papers, and judicial or other official ‘proceedings with proper citation. Any copy of this book without the correspond- ing number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose ofthe same, ALL RIGHTS RESERVED BY THE AUTHOR No, 0085 i 1 | AY ols rctaeos Pond Ax pRinTing comPAay, in, ieee FOREWORD Like its initial edition, this work is the second volume of a two-volume material in Civil Procedure, and is prepared primarily for law students and bar reviewees as an aid to passing the annual bar examinations. Hence, its scope discloses no pretensions of being an exhaustive discussion of every procedural principle. In this volume, every effort is made to incorporate the available latest pronouncements of the Supreme Court. References are also made to the year when a particular topic ‘was made the subject of the bar examinations. Like similar materials written before this edition, this work is a sincere and humble attempt to present procedural principles in a manner that would approximate their application to actual litigation. However, owing to the limited purpose of this material, it is not possible to include every procedural principle that may possibly arise in the litigation process although the reader may find within its pages the fundamental principles necessary to grasp the essence of procedural law. ‘This material is written based onthe theory thatthe study of procedure is not the difficult process it has traditionally been made to appear. As we had earlier stated in a similar treatise, there is a ‘need to provide a fresh look at the subject so the reader may see how the various pieces of the procedural puzzle neatly fit into a beautiful and logical scheme.” Hence, the reader will find that the topics in this material constitute the rearranged versions of those found in the Rules of Court. The rearrangement is intended to bring down the study of procedure to a more simplified, yet workable level so the student of law may come to realize that procedural principles are neither abstract nor circuitous.Again, as it has always been said, our deepest gratitude ‘goes to our students and bar reviewees, they being the primary sources of energy in the development of this work. Without them, this work would not have seen the light of day. Quezon City, Philippines January 25, 2016 WILLARD B. RIANO DEDICATION ... Nifia ...and her baby, Christopher...Preliminaries... Nature of provisional remedies Purpose of provisional remedies (Bar 1996), Ilustrations Court with jurisdiction over provisional remedies.. Kinds of provisional remedies under the Rules of Court. Deposit as provisional remedy inthe exereise of lly Jurisdiction ofthe court. = Provisional remedies in criminal cases... ‘Nature of preliminary attachment. Grant of preliminary attachment is discretionary... CONTENTS, Part! PROVISIONAL REMEDIES Rule,57 PRELIMINARY ATTACHMENT Strict construction in favor of the defending party... ‘Who may avail of prelirainary attachment. Purpose of preliminary attachment... Stage of the proceedings when preliminary attachment may be applied for Kinds of attachments; distinctions (Bar 1975, 1990, 1999, 2012) nn Grounds for the issuance of a writ of preliminary attachment (cases where preliminary attachment is proper)... A B. c Recovery ofa spetifid amount of money or damages. Action for money or property embezzled (Bar 1982) Recovery of property unjustiy or fraudulent taken... u 13 4 4 u 15 16 19 19 21 21D. Fraud in contracting or performing an obligetion (Bar 2011). Removal or disposal of property with intent to defraud. ‘Action against non-residents or on whom summons may be served by publication... Requisites for the issuance of an order of preliminary attachment; affidavit and bond required Contents of the affidavit. Effect af the existence of a mortgage... Condition of applicant's bond Issuance of the order; ex parte or upon motion with notice and hearing (Bar 1978, 1991, 1993, 1996, 2001, 2005). Stages in the grant of preliminary attachment. Prior or contemporaneous service of summons (Bar 2005). When the requirement of prior or contemperaneous service shall not apply Duties of the sheriff Attachment of veo! property: growing crops Attachment of personal property capable of manual delivery. Attachment of stocks or shares or interest therein. Attachment of bank deposits and similar property ‘not capable of manual delivery (garnishment). Effect of attachment of debts, credits and similar personal property Attachment of interest in property belonging to the estate of the decedent. Effect of attachment of interest in property belonging to the estate of the decedent.. ‘Attachment of property in custodia legis; requirement (Bar 1999), Examination of party whose property is attached or of person indchted to him. Sale of property after levy on attachment and before entry of judgment. Remedy of a third person, not a party to the action, whose property is attached (Bar 2000). Discharge of attachment; counter-bond and other grounds. Effect of the discharge of the attachment. Damages for a wrongful attachment (Bar 1999, 2008) . 36 37 37 38 38 39 39, 40 42 “4 “4 i i i I } t I i Judgment to be included in the main case... se Satisfaction of the judgment out of the property attache return of sheriff. Rate ifjudgment i rendered again the attaching party... Rule 58 PRELIMINARY INJUNCTION Meaning of preliminary injunction... Preliminary injunetion as an equitable remedy. Purpose of preliminary injunction Grant ofa wrt of preliminary injunetion; not a judgment on the merits... Issuance of the writ as subject to judicial Stage of proceedings when granted .. Kinds of preliminary injunction Preliminary prohbitry injunction distinguished frm preliminary mandatory injunction. Preliminary injunetion distinguished from the main action for injunction (Bar 2008). Example of acts subject to the mai action for injunction Immediate execution of a judgment in an action for injunction. Preliminary prohibitory injunction distinguished from a petition for prohibition, : Preliminary mandatory injunction distinc ‘from a petition for mandamus. Court that issues writ of preliminary injunction . Grounds for the issuance of writ of @ preliminary injunction Clear and unmistakable right Formal requisites for issuance of a writ of preliminary injunction (Bar 2006) or temporary restrining order = Posting of a bond Rule on prior or contemporary service of summons; ‘when not required . Notice and hearing (Bar 1998, 2001)... ‘Temporary restraining order (Bar 2006). ‘When rule against non-extendibility:of a TRO applies; when not applicable. Daration of a temporary restraining order (Bar 2012); duration not extendible (Bar 2006), 46 a7 48Examples of eases justifying the issuance of a writ of preliminary injunetion Prohibition on injunctions under B.A. 8975 (An Act to Ensure the Expeditious Implementstion and Completion of Government infrastructure Projects) (Bar 2012). : Examples of othor cases where injunction/preliminary injunction will not be issued. First paragraph of Sec. 14 of R.A. 6770 declared ineffective, second paragraph declared unconstitutional Grounds for objection to an application for, or for motion of dissolution of, injunction or restraining order. Effect of filing a counterband Modification of the injunction Grave abuse of discretion as « ground for nullifying an injunctive writ, Duty of the court that issued the writ. Grant of final injunction Rule 59 RECEIVERSHIP Nature of @ receivership . Examples of cases that justify the appointment of a receiver. Meaning of a receiver. Appointment of a party or clerk of court as a receiver ... Court that can grant receivership. Receivership after judgment Requisites for the appointment of a receiver. Kinds of honds; two bonds Opposing the application for the appointment of a receiver General powers of a receiver Investment .! funds by receiver (Bar 2011) Suits against a receiver Liability for refusal or neglect to deliver property to receiver . ‘Termination of receivership; compensation of receiver .. Rule 60 REPLEVIN ‘Nature of replevin (Bar 1999) Replevin distinguished from preliminary attachment .. When a writ of replevin may be applied for n 93 95 96 I t | i | | Procedure for the application for replevin; affidavit and bond. Property in custodia legis Undertaking of the replevin bond. Order of the court and writ of replevin; when issued . Duty of sheriff in the implementation of the writ. How adverse party may seek the retum of the property redelivery bond... [Bffeet of the dismissal of the complaint. When property i claimed by a third party Judgment .. Rule 61 SUPPORT PENDENTE LITE Nature of support pendente lite.. Who may ask for support pendente lite When to apply for support pendente lite... Procedure for application for support ‘pendente lite . Support pendente lite in criminal cae... Enforcement of the order. Restitution. MISCELLANEOUS PROVISIONAL REMEDIES isional remedies (interim reliefs) available to the petitioner in a petition for a writ of amparo (Bar 2012) Provisional remedies (interim reliefs) available to the respondent in a petition for a writ of ampavo.. Special provisional remedies under R.A. 8369. Provisional remedies under the Human Security Act (R.A. 9872)... Provisional remedies under the Anti-Violence Against ‘Women and their Children Act (R.A. 9262).. Provisional remedies under the Anti-Money Laundering Act of 2001 (R.A. 9194 amending R.A. 9160) Provisional remedies under the Proposed Rule on Provisional Orders (A.M. No. 02-11-12-SO) effective March 15, 2003. Provisional remedies under the Rules of Procedure on Corporate Rehabilitation (A.M. No. 00-8-00-10-SC, effective January 16, 2009).. Provisional remedies under the Rules of Environmental Cases (A.M. No. 09 April 13, 2010) 109 ut i 12 uz 16 us 7 usProvisional remedies under R.A. 9285 (An Act Institutionalize the Use of an Alternative Dispute Resolution System). Interim measure of protection under the Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules, A.M, No, 07-11-08-8C, ‘September 1, 2009} « Part il SPECIAL CIVIL ACTIONS Preliminaries. Nature of a civil action; purposes. Kinds of civil actions Ordinary and epecial civil actions = Examples of rules not common to both civil actions ‘The special civil actions in the Rules of Court How special civil actions are initiated or commenced Court with jurisdiction over special civil ectic Rule 62 INTERPLEADER Meaning of interpleader; purpose... Requisites for an interpleader (Bar 2012) ‘When interpleader is proper; when filed .. Illustrations. Court with jurisdiction How commenced. Interpleader distinguished from intervention. Payment of docket fees; lien ‘Summons; order to interplead.. ‘Motion to dismiss Impropriety of the interpleader action, Effect of the filing of a motion to dismiss on the period to answer Answer Defantt. Reply. Other pl Pre-trial Determination; adjudication dings 120 122 122 122 122 123, 126 130 130 131 134 135 136 136 137 137 138 138 139 139 140 140 ui 43 i i | | t ' | i i Rule 63 DECLARATORY RELIEF AND SIMILAR REMEDIES I-DECLARATORY RELIEF Meaning Purpose of declaratory rel ‘Two types of actions under Rule When court may refuse a judicial declaration (Bar 2012), Requisites for declaratory relief.. Subject matter in a petition for declaratory relief, exclusive. : When a petition for declaratory relief is not proper; examples (Bar 1998) Tague and relief on Who may file the petition Other partie Court with jurisdiction Petition for declaratory relief treated as a petition for prohibition Inapplicabilty of a third-party complaint... Applicability of a compulsory counterclaim. Granting affirmative relief. - No executory process as in ordinary civil actions .. Filing before any breach or violation Justiciable controversy; other requisites. II-SIMILAR REMEDIES Reformation of an instrument... Consolidation of ownership (Bar 2012)... Quieting of title; quasi in rem action. Requisites of quieting of title Rule 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT Preliminaries Applicability of Rule 64. Remny of the aggrieved party; application of Rile 65 Raising jurisdictional grounds. : Rule 64 does not apply to the Ci 142 142 43 14d 145 146 uy 148 148 148 149 153 156 156 187 158 160 162 167 168 170 172 14 195 175 175 iTFindings of fact; not reviewable ‘When to file the petition; distinctions in the application of Rule 65 to other tribunals, officers or persons... Motion for new trial or motion for reconsideration Payment of docket and lawful foes. Filing of petition does not stay execution. Form of the petition . Parties. os Contents of the petition Verification; material data (date) rule; certification ‘against forum shopping. Effect of failure to comply with the provision on form and contents of the petition. Order to comment; outright dismissal. Form of the comment. ‘No other pleading to be filed Oral arguments; memoranda; submission for decision -. Rule 65 CERTIORARI, PROHIBITION, MANDAMUS A. Certiorari (Bar 2012) Purpose and function of petition for certiorari... Certiorari under Rule 65; not a mode of appeal (Bar 1991) Certiorari is an original and independent action Certiorari distinguished fom appeal in genezal Certiorari == a substitute for a lost appeal (Bar 1991) When certiorari is available despite the loss of appeal. Specifie distinctions between certiorari under Rule 45 and certiorari under Rale 65 (Bar 1991, 1998, 1999) Essential requisites fora petition for certiorari First element; respondent must exercise judicial or ‘quasi-judicial functions. Expanded scope of certiorart Second element; the respondent has acted without jurisdiction, or in excess ofits or his jurisdiction, or with grave abuse of discretion amounting to lack: of jurisdiction. ‘Acting without jurisdiction; in excess of jurisdiction, grave abuse of discretion Excess of jurisdiction distinguished from absence of jurisdiction Grave abuse of diseretion 181 181 182 182 182 182 183 183 183 187 187 189 190 191 194 194 200 ‘Third element; absence of appeal or any plain, speedy ‘and adequate remedy (Bar 1999) 209 When certiorari is allowed despite availak of appeal (Bar 1999, 2002)... 210 ‘Necessity for a motion for reconsideration 211 Exceptions to the requirement of a motion for reconsideration (Bar 1989)... Filing of the petition for certiorari Other requirements for filing the petition. Certification against forum shopping wn... Material dates in the petition; ‘material date rule... ‘When to file petition; extension generally prohibited... Court where petition is filed... : Meaning of “in aid ofits appellate jarisdiction” Observance of the ‘hierarchy of courts’ print : Parties to the petition Duty of private respondent... Public respondent; appearance not required; exception. 224 Filing of petition does not stay proceedings; necessity for a writ of injunction, 224 Judicial courtesy is not the prevailing rule; exception 225 Duty of the court which issued the preliminary injunction... 227 Order to comment ~ 227 Proceedings after comment; judgment... 228 Grounds for dismissal of the petition; unmeritorious petitions orn 228 Service of copy of judgment to publie Fespondent 229 Contempt for disobedience senmnnnnninee 229 Rekif., 229 Review of judgment in a cerviorari petition. 230 Liberal construction; when a Rule 45 petition is considered as a Rule 65 petition and vice-Ver8a...nn. 230 Distinctions betweea certiorari under Rule 64 and certiorari under Rule 65... ' 231 Examples of situations where cerviorari is a remedy 232 ‘Some proceedings where certiorari is not available. 234 B, Prohibition (Rule 65) ........ 237 Purpose and funetion of the remedy 237 Requisites for a writ of prohibition... 240 Prohibition is an original action. sononnens 242 Availability of other remedies precludes resort tc prohibitionPremature resort to prohibition Prohibition distinguished from certiorari. Observance of the hierarchy of courts C. Mandamus (Bar 2012) Nature and purpose of mandamus Prayer in a petition for mandamus Requisites for mandamus Existence of a clear legal right. Ministerial act versus discretionary act Ministerial act or duty. Diseretionary acts not compellable by mandamus .. When mandamus may lie to compel diseretionary acts .. Contractual obligations, not coinpellable by mandamus. Nature of the judgment in mandamus Declaratory relief treated as mandamus... D. Writ of Continuing Mandamus/Writ of Kalikasan (Rules of Procedure for Environmental Cases). D1. Writ of continuing mandamus (Bax 2018)... The case. ‘Meaning of continuing mandumus When the writ is available, Form and contents of the petition ‘Where to file the petition. No docket fees Action of the court when the petition is filed . Order to comment Proceedings after comment is filed Judgment; periodie reports. Comments of petitioner Return of the writ; final return D2. Writ of Kalikasan (Bar 2015) Requisites for the writ to be available Verified petition; contents Court where the petition is filed Docket fee z Issuance of the writ. Duty of the clerk of court. Penalty for refusing to issuc the writ Service of the writ Penalty for refusing to serve the writ 242 243 Dad 244 244 246 246 247 247 248 252 252 253 258 254, 254 254 254 256 256 256 257 257 257 257 258 258 259 259 259 259 260 261 261 262 262 262 262 263 Return of respondent; non-oxtendible .... : Contents of the verified return of respondent... Waiver of defenses 7 Effect of failure to file the return. Contempt proceedings . Preliminary conference; modes of discover. Hearing; priority given . ‘Submission of case for decision; submission of memoranda Jadgment; period to render... son Reliefs which the court may grant under the writ... Appeal..... ee Prohibited pleadings Prohibited motions... Filing of the petition is not a bar ta the fling of other actions : : Rule 66 QUO WARRANTO Nature and purpose of the action. . Quo Warranto distinguished from mandamus. A petition generally brought in the name of the Republic; verified petition.... Against whom petition may be brought... ‘Whe may commence the petition When the action must be commenced (by the government) When the action may be commenced with the permission of the court... : When an individual may commence the action.. Allegations when the petition is filed against a usurper; parties Jurisdiction and venue (Bar 1991). Quo warranto in the Sandiganbayan nu. Quo warranto under the Omnibus'Blection Code. Que warrazto in the Omnibus Election Code (elective office) distinguished from a quo warranto in an appointive office, Quo warranto distinguished from an election protest. Period for fing (Bar 1980) Judgment in quo warranto proceedings... Rights of persons adjudged entitled to public office 263 263 264 264 265 265 265 266 266 266 267 267 267 268 269 268 269 270 270 270 270 271 272 272 273 273 276 277 278 278 278Period to claim damages. Quo warranto against corporations Rule 67 EXPROPRIATION Preliminaries, - Essence of expropriation; concept of “public use”. ‘Meaning of just compensation. Government has no Unrestricted tide to the land expropriated Exercise of eminent domain by local government units Exercise of eminent domain through an ordinance How the local government unit may immediately take possession of the property... Expropriation not limited to acquisition of title. Stages in the expropriation process Matters tobe alleged in a complaint for expropriation Service of summons; who may be defendants Court with jurisdiction Defenses anil abjeetions in the answer. Remedy wisen some defences are omitted Gounterclaims; crost-claims or third-party complaints... Waiver of defenses or failure to answer, effect. When an answer is not required Entry upon the property or poseession thereof; deposit, and notice (Bar 2009, 2011) Effect of making the required deposit (Bar 2011).. Purpose of the deposit. Entry upon the property or possession under R.A, 8974; immediate payment. Now system of immediate payment under R.A. 897 application of the rule Deposit under the Local Government Code. Order of expropriation No dismissal by plaintiff upon rendition of the order of expropriation Appeal from the order of expropriation. Matters not affected by the appeal... Rule if the trial eourt’s decision is reversed on appeal Ascertainment of just compensation; hearing mandatory... ‘Judgment as to compensation. ‘Appeal trom the judgment as to compensation; effet 279 279 281 283 284 286 287 288 288 289 289 291 291 292 293 293 294 294 294 285 296 296 296 208 229 299 299 299 299 300 300 302 308 | ‘When to ascertain just compensation Payment of just compensation Payment in case of uncertain ownership: conflicting claims nnn Right of plaintiff after judgment and payment Rule if payment is refused. Non-paymont of st compensation; effect. Recording of the judgment and its effect. Rule v8 FORECLOSURE OF REAL ESTATE MORTGAGE, Dragnet clause or blanket mortgage clause (Bar 2012).. When foreclosure is proper; demand to pay... Alternative remedies of the creditor; splitting a single cause of action (Bar 1999) . Pactum commissorium; not a valid agreement. Court with jurisdiction .. “Modes of foreclosure of real estate mortgage; judicial foreclosure and extrajudicial foreclosure. Appheability of Rule 68 Allegations in a complaint for foreclosure. Precedure Judgment on foreclosure; payment or sale. Equity of redemption (Bar 1984, 2000, 2012). Right of redemption... Sale of the mortgaged property; effect... Confirmation of the sale. Effect of confirmation of the sale... Effect of finality of the confirmation of the sale; writ of possession, Disposition of the proceeds of the foreclosure sale. Registration of the 8l€ wn. Deficieney judgment; when there is no deficiency judgment... Rule in case there is a surplus instead of a deficioncy. Summary of distinctions between judicial foreclosure and extrajudicial foreclosure of real estate mortgage... Rule 69 PARTITION Preliminaries... Prescription of action; effect. 303 304 304 305 305 305 306 308 309 310 311 312 313 314 314 314 315 316 316 317 318 319 320 321 321 322 322 323 324 325Court with jurisdiction 326 Modes of partition - . ~ 937 Stages/phases in partition sonnei, 888 Multiple appeals. 329 Who may file action for partition; defendants. 329 Matters to be alleged in the compiaint, 325 Order for partition; final order is appeaiable 330 Partition by agreement, enews, 880 Partition by court-appointed commissioners, appointment. 331 When division would be prejudicial 881 Report of the commissioners 332, ‘Action of the court upon the report of the commissioners 332 Proceedings before the commissioners; no binding effect... 382 Judgment of partition; effects of judgerent 333 Recording of the judgment 333 Role when there are expenses to be paid from the estate... 983 Partition of personal property 334 Rule 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER Actions to recover possession of real property. Distinctions Court with jurisdiction over forcible entry and unlawful detainer (accion interdictal) (Bar 2013).. 336 Court with jurisdiction in accion publiciana and accion reivindicatoria on 886 Definitions of the actions: general distinctions wevecscncnwne- 387 Allegations in forcible entry. 338 Allegations in unlawful devainer.. 339 ‘When the complaint fails to aver facts how entry was effected... 340 Summary nature ofthe aelions.....-. : 41 Possession as the issue aa ‘Meaning of prior physical possession in forcible entry cases seontsnannnine BAB Nature of the entzy is to be considered 343 Allegations required 344 When defendant cecupies premises by mere tolerance. 345 When the rule or tolerance does not apply eee oi) Real an* in personam nature of the actions; venue (Bar 1991) 347 Who may institute the action far forcible entry or unlawful detainer... 348 t Effect of the pendency of an action involving ownership on the action for forcible entry and unlawful detainer. Examples of cases which do not bar an action for forcible entry or unlawful detainer When judicial action is not necessary... Demand in unlawful detainer cass (Bar 1980). Form of demand.. When right to commence the action arises When demand is not necessary in unlawful detainer cases Tacita reconduccion .. Answer fa the complaint; waiver of defenses ... Effect of failure to answer .. Defense of tenancy (Bar 2008)... Resolving the defense of ownership. Judgment conclusive only on possession. Conciliation requirement... Pleadings allowed in forcible entry and unlawful detainer; verification Prohibited pleadings, petitions and motions Preliminary injunction; how to obtain possession of the premises during the pendency of the action, in the MTC. Preliminary injunction to prevent further acts of dispossession.. Preliminary injunction when case #3 on appeal to the RTC duedgment Immediate exceution of judgment (MTC) (Bar 1997) Decision of the RTC on appeal is immediately executory. How to stay immediate execution of the judgment (Bar 1990, 2009) Whore to appeal: writ of preliminary mandatory injunction, Persons bound by the judgment in ejectment cases... Rule 71 CONTEMPT ‘Meaning of contempt of court. Contempt power is inherent in courts... Purposes and nature of contempt proceedings. Direct and indirect contempt... : Specific acts punishable as direct contempt; examples (Bar 2012). : 348, 348 360 361 353 353 353, 354 355 356 356 387 369 369 360 360 360 361 361 361 362 362 363 364 365 366 367 368 369 369No formal proceeding required; sumaiary proceedings. Penalties for direct contempt Remedy of a person adjudged in direct contempt Nature of indirect contempt... Specific acts punishable as indirect contempt; exampies Clear and present danger rule in contempt sun How a proceeding for indirect contempt is commenced (Bar 2012) Necessity for hearing Court where the charge for indireet contempt is to be filed Penalty for indirect contempt.. Imprisonment until the order is obeyed Release of respondent. Remedy of a porsca adjudged in indirect contempt Contempt against quasi-judicial entities (Bar 2013) Other kinds of contempt; criminal and civil contempt Criticism of courts Contempt in relation to exeeution of judgments Contempt powers of the legislature; legislative investigations .. Contempt power of local legislative bodies Case Index 370 371 371 372 373 375 376 378 379 380 380 381 381 381 383, 384 885 386 390 Part! PROVISIONAL REMEDIES Preliminaries Nature of provisional remedies 1, Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant while the main action is pending or until a final disposition of the matter in litigation is made. Such remedies are dependent for their application upon the existence of a principal action. Hence, without a principal action, provisional remedies would find no legal application. Because provisional remedies depend on a principal action for their efficacy, the dismissal of a principal action or its resolution will render the provisional remedies therein ineffective 2. These remedies are provisional because they consti- tute temporary measures availed of during the pendency of the main action and are ancillary because they are merely in- cidents and are dependent upon the result of the main action (See Raymundo v. Court of Appeals, 213 SCRA 457, 461). For instance, a preliminary injunction, like any preliminary writ, and any interlocutory order, cannot survive the main case of which it is an incident. An ancillary writ of preliminary injunction loses its force and effect after the decision in the main petition (Zuneca Pharmaceutical v. Natrapharm, Inc., GR. No, 197802, November 11, 2015). Hence, when the main action is dismissed, the provisional remedy is also dissolved. (Bar 2002)3. Provisional remedies are not causes of action in themselves but merely adjuncts to a main suit (stares v. Court of Appeals, 459 SCRA 604, 618) Purpose of provisional remedies (Bar 1996) Provisional remedies are resorted to by litigants for any or a combination of the following reasons’ (a) To preserve or protect their rights or interests while the main action is pending; (b) To secure the judgment; (©) To preserve the status quo; or (d) To preserve the subject matter of the action. Mlustrations 1. Imagine a debtor owing his creditor a substantial amount of money and the obligation is now due. The creditor demands payment and sues when the debtor fails to pay. Before the suit is filed, the creditor obtains evidence that the debtor had been selling his property with the intent to defraud him. Is there a way to prevent the debtor from disposing of his remaining property? There is a way provided for under the Rules. Under Rule 57 of the Rules of Court, at the commencement of the action or at any time before the entry of judgment, the creditor may have the property of the debtor attached s such property will be piaced under the custody of the court and, thus, prevent the debtor from disposing of or concealing the same to the prejudice of the creditor. The attachment, called preliminary, is aimed to secure the satisfaction of any judgment that may be rendered by the court favorable to the creditor. The provisional remedy under this situation is called a preliminary attachment while tha main action is a suit for a sum of money, Without this provisional remedy, the creditor, despite prevailingin the suit, may find himself with only an empty bag, PART I — PROVISIOWAL REMEDIES a Prolimin’ries and without any means to collect from the debtor who, during the litigation, had already disposed of all of his property. 2 Consider also a situation where the plaintiff: mortgagee files an action to foreclose a real estate mortgage against the defendant-mortgagor. The building subject of the mortgage is rapidly depreciating in value because of the gross neglect of the mortgagor so that if the judgment rendered later turns out to be favorable to the mortgagee, the value of the property would be insufficient to discharge the mortgage debt. May the mortgagee avail of a provisional remedy while the action is pending to prevent the further deterioration of the property? Under existing rules, he may avail of a remedy even before the finality of the proceedings by applying for the appointment of a receiver wio will be tasked with the administration and preservation of the property. The main action, in this example, is the action to foreclose the mortgage. The provisional remedy is receivership under Rule 59 of the Rules of Court. 3. Assume that a person enters the land of another by stealth or strategy with intent to acquire permanent possession of the same. To protect his rights over the property, the owner files an action to recover the physical possession of the land against the intruder. The latter resists and interposes a prior right of possession through a series of transfers from the criginal possessor whose right allegedly antedates the plaintiffs right. As a result of the intrusion, the plaintiff is not in possession of the property while the action is pending. It is in the possession of someone who may even be willing to employ force to retain possession of the land. The plaintiff cannot put the land into productive use. If the land is the only source of livelihood of the plaintiff, delays in the resolution of the case wonld canse his family possible irreparable economic injiry. Under the above circumstances, does the plaintiff have to wait for the rendition of a final judgment adverse to the intruder before he can regain possession of the land? Is therePROCEDURE, VOLUME If ‘THE BAR LECTURES SERIES any remedy available to him to regain possession of the land while the case is pending? Fortunately, the plaintiff does not have to agonizingly wait for the court to finally adjudge possession in his favor. The plaintiff may avail of a remedy under the Rules to obtain the possession of the property while the main action is being litigated. The court may, upon proper application by the plaintiff, order the defendant to surrender the possession of the property to the plaintiff even before the main case is resolved, Under prevailing law and jurisprudence, the intrusion on the land by the defendant constitutes an actionable «rong called forcible entry. In this cause of action, a person is deprived by another of the possession of any land or building by fore, intimidation, threat, strategy or stealth (See Sec. 2, Rule 70, Rules of Court). Under Section 15 of Rule 70, a possessor deprived of his possession through forcible entry may, within five(5) days from the filing of the complaint, present a motion in the action for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The main action in the illustration is forcible entry while the provisional remedy is preliminary mandatory injunction, the latter being merely ancillary to the former. ‘The order of the court, however, partakes only of an interim remedy because if the evidence adduced in the proceedi..gs unequivocally shows that it is the defendant who is rightfully entitled to the possession of the land, then a judgment awarding the possession to the defendant will have ‘to be rendered by the court. The possession which the court may grant to the plaintiff, during the pendency of the action, is one that is a mere provisional or temporary possession. 4. Consider, too, the case of an illegitimate minor child who, with the assistance of his mother, files an action for support against his natural father. The plaintiff-child is impoverished, the mother being sick, jobless, and poor. For the minor child, survival is a chailenge he must face on a daily basis. PARTI ~ PROVISIONAL REMEDIES 5 Preliminaries Under the circumstances, does the child have to wait for the final adjudication of the issue of his entitlement to support before he receives the relief prayed for in his complaint? Applicable rules clearly supply an answer to the question and meet the need for an interim relief, While the principal action for support is pending, he may apply for support pendente lite or support pending the resolution of the case pursuant to Rule 61 of the Rules of Court. Here, support pendente lite is the provisional remedy and the action for support, the principal action. 5. Imagine Mr. DD who borrows the car of Mr. PP. Mr. DD promises to return the car after three days but reneges, on his promise, Mr. DD alleges thrat the car has actually been pledged to him by Mr. PP who, in turn, denies the pledge. The latter files an action to recover possession of the car. Mr. DD resists the claim and is ready for a protracted litigation. If the car is being used by Mr. PP as an economic tool, may he have the car's possession restored to him in the meantime that the main case has not yet been finally resolved? He may. Under Rule 60 of the Rules, a person praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order far the delivery of such property to him through the provisional remedy of replevin, alleging among others, that the property is wrongfully detained by the adverse party. Court with jurisdiction over provisional remedies 1. Thecourtwhich grants orissuesa provisional remedy is the court which has jurisdiction over the main action, Thus, where the main case is pending in a specific Regional Trial Court, it is this same court, not any other court, which may grant the provisional remedy applied for. A court cannot grant a provisional remedy where it has no jurisdiction over the principal action. In one case, it was declared in the clearest of terms that, “Since the RTC had no jurisdiction over the Petition x x x then it was also devoid of any authority to act on the application6 CIVIL, PROCEDURE, VOLUME 11 ‘THE BAR LECTURES SERIBS for the issuance of a writ of preliminary injunction contained in the same Petition. The ancillary and provisional remedy of preliminary injunction cannot exist except only as an incident of an independent action or proceeding” (BF Homes, Inc. v. Manila Electric Company, 636 SCRA 495, 517). 2. Tiw authority tc grant a provisional remedy is not the sole prerogative of superior courts. Even inferior courts may grant a provisional remedy in an action pending with it and within its jurisdiction. Under B.P, 129, as amended, the jurisdiction of the Municipal Trial Court includes.“the grant of provisional remedies in proper cases” (Sec. 33[1],'B.P. 129, The Judiciary Reorganization Act of 1980, as amended). Hence, under Sec. 15 of Rule 70, a Municipal Trial Court may grant preliminary injunction in an aetion for forcible entry or ‘unlawful detainer, to prevent the defendant from committing further acts of dispossession against the plaintiff. As earlier mentioned, pursuant to the same provision, the court may also issue @ writ of preliminary mandatory injunction to a possessor deprived of his possession through forcible entry or unlawful detainer to restore him in his possession upon proper application filed within five (5) days from the filing of the complaint. 3. Where the principal action is for specific performance, any provisional remedy applied for in the case can only be issued by the Regional ‘Trial Court hearing the same case. The provisional remedy cannot be issued by a Municipal Trial Court which has no jurisdiction over an action incapable of pecuniary estimation (Sec. 19/1), B.P. 129, as amended), like an action for specific performance. 4. Where the main action is to recover the amount of P5 million from a debtor who is disposing of his assets with intent to defraud his creditor, a Municipal ‘Trial Court has no jurisdiction to issue a writ of preliminary attachment because the principal action, by reason of the amount involved, is not within its jurisdiction (Sec. 19/8), B.P. 129, as amended). 5. Where the main action is one for support, the provi- sional remedy of support pendente lite may not be granted by i PART I ~ PROVISIONAL REMEDIES 7 Preliminaries a Municipal Trial Court because the main action is one within the jurisdiction of the Family Court (Sec. fe), R.A. 8369). 6. Where the action is one for accion publiciana involving a real property with an assessed value of ten thousand pesos (P10,000.00), any provisional remedy applied for may be gronted only by the Municipal Trial Court where the action is pending. It cannot be jssued by a Regional Trial Court because it has no jurisdiction over the action. ‘ncipal action, by reason of the assessed value of the property, is one cognizable by the Municipal Trial Court (Sec. 33{3], B.P. 129, as amended). * 7. Where support pendente lite is sought for by the vietim for her offspring in a criminal prosecution for rape against the alleged father of her child, the Municipal Trial Court has no jurisdiction to issue the provisional remedy, rape being within the jurisdiction of the Regional Trial Court. 8. A party appealing from the judgment of the Court of Tax Appeals can apply for a provisional remedy during the appeal, only with the Supreme Court which has jurisdiction over the appeal. 9, Where a petition for certiorari is pending in the Court of Appeals directed against an order of the Regional ‘Trial Court, any application for a provisional remedy shall be filed with the Court of Appeals where the petition is pending. Kinds of provisional remedies under the Rules of Court 1. The provisional remedies specified under the Rules are: (a) Preliminary attachment (Rule 57); (b) Preliminary injunction (Rule 58); (c) Receivership (Rule 59); (@)_Replevin (Rule 60); and (e) Support pendente lite (Rule 61).8 CIV, PROCEDURE, VOLUME IL ‘THE BAR LECTURES 2. The above enumeration does not represent an exclusive list of provisional remedies. There are provisional remedies (interim reliefs) provided for in other rules and laws, 3. Provisional remedies may also be availed of in criminal actions pursuant ¢o Rule 127 of the Rules of Court. 4, Provisional remedies may also be granted in the exercise of the court’s equity jurisdiction (Reyes v. Lim, 498 SCRA 560, 566-567) where no specific provisional remedy is provided for by the Rules in a particular case. Deposit as a provisional remedy in the exercise of equity jurisdiction of the court In an action for specific performance and nullification of sale and title plus damages, the buyer moved that the seller be ordered to deposit with the cashier of the trial court the P10 million down payment on the land which was paid by the buyer. The motion was filed to prevent the dissipation of the amount pending the resolution of the case. The seller opposed the motion, pointing out that deposit isnot among the provisional remedies ennmerated in the 1997 Rules of Civil Procedure. He argued that the enumeration in the Rules is exclusive and that not one of the provisional remedies in Rules 57 to 61 applies to the case. He further contended that a court cannot apply the principle of equity and require deposit if the law already prescribes the specific provisional remedies which do not include deposit. He, likewise, invoked the principle that equity is “applied only in the absence of, and never against, statutory law or x x x judicial rules of procedure.” The seller, likewise, insisted that the fact that the provisional remedies do not include deposit is a matter of dura lex sed lex. While conceding that deposit is not among the provisional remedies in the Rules of Court, the Supreme Court held, nevertheless, that the facts represent a case where there is a hiatus in the law and in the Rules of Court. If left alone, declared the Court, the hiatus will result in unjust enrichment, to the seller at the expense of the buyer. Tae hiatus may also PARTI — PROVISIONAL REMEDIES 8 Pealiminaries imperil restitution, which is a precondition to any annulment or rescission of a contract. The Court ruled emphatically that the case is not one of equity overruling a positive provision of law or judicial rule for there is no rule that governs the particular case. Instead, it is a case of silence or insufficiency of the law and the Rules of Court. This silence, according to the Court, is not a reason to refrain from ruling on the matter because of the provisions of Art. 9 of the Civil Code which expressly require the courts to inake a ruling despite the “silence, obscurity or insufficiency of the laws.” This situation, explained by the Court, calls for the application of equity jurisdiction, which “fills the open spaces in the law.” ‘The Court, thus, specifically declared: “x x x the trial court in the exercise of its equity jurisdiction may validly order the deposit of the P10 million down payment in court. The purpose of the exercise of equity juriediction in this case is to prevent unjust enrichment and to ensure restitution. Equity jurisdiction aims to do complete justice in eases where a court of law is unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction. Rquity is the principle by which substantial justice may be attained in eases where the prescribed or customary forms of ordinary law are inadequate” (Reyes v. Lim, 408 SCRA 560, 566-567) Provisionat remedies in criminal cases 1. Provisional remedies may also be availed of in criminal actions pursuant to Rule 127 of the Rules of Court because of the civil liability which, as a rule, attaches to the Under Sec. 1 of Rule 111, “When a criminal action is instituted, the eivil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action x x x.” In connection with the civil action deemed instituted with the criminal action, the provisional remedies in civil actions10 IVI, PROCEDURE, VOLUME It ‘THE BAK LECTURES SERIES may be avcited of insofar as they are applicable (Sec. 1, Rule 127, Rules of Court) 2. In Sec. 2 of Rule 127, “When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (Bar 2013) (a) When the accused is about to abscond from the Philippines; (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; ‘<)_ When the accused has concealed, removed, or disposed of his property, or is about to do so; and (2) When the accused resides outside the Philip- pines.” — oo — | | | | | | Rule 57 PRELIMINARY ATTACHMENT Nature of preliminary attachment 1, Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party. (Northern Islands Company, Inc. v. Spouses Garcia, GR. No. 203240, March 18, 2015; See also Watercraft Venture Corporation v. Wolfe, G.R. No. 181721, September 9, 2015) ‘The attachment is preliminary only when resorted to before the finality of the judgment to secure the property of the adverse party and to prevent its dissipation. Once the judgment has become final and executory, the attachment becomes a final one and is issued in order to satisfy the judgment. 2. Preliminary attachment is purely a statutory remedy. It cannot exist without a statute granting it (U.S. v. Namit, 38 Phil. 926, 932). Its legal basis for application is not only a direct provision in the Rules of Court (Rule 57) but also in the Civil Code of the Philippines (Are. 1177, Civil Code) which authorizes a creditor to pursue the property of the debtor. 3, Preliminary attachment itself cannot be the subject of @ separate action independent of the principal action because the attachment is only an incident of such action (Northern Islands Company, Inc. v. Spouses Garcia, G.R. No. 205240, March 18, 2015). There is no separate action called au CIVIL PROCEDURE, VOLUME It ‘THE BAR LECTURES SERIES preliminary attachment. It is not a distinct proceeding and is availed of during the pendency of a principal action because it, is a mere provisional remedy. For instance, if a plaintiff files an action to collect a sum of money against a defendant who is about to leave the country, with a clear intent to defraud his creditor, the action for collection may be coupled with an application for the issuance of a writ of preliminary attachment directed against the property of the defendant in order to prevent him from disposing of his property during the pendency of the litigation. ‘The application for the issuance of a writ of preliminary attachment is merely anciliary to the main action, which is, the action to collect a sum of money. When the writ is issued, the property of the adverse party would be then put under custodia iegis to be held by the court for the satisfaction of whatever award which may be obtained by the applicant. 4, 3eing merely ancillary to 2 principal proceeding the attachment must fail if the principal suit itself cannot be maintained, as the purpose of the writ can no longer be justified. Another consequence is that, where the main action is appealed, the attachment which may have been iseued as an incident of that action, is also considered appealed and also removed from the jurisdiction of the lower court. The attachment itself cannot be the subject of a separate action independent of the principal action because the attachment. is only an incident of such action (See Northern Islands Company, Inc. v. Spouses Garcia, G.R. No. 203240, March 18, 2018). 5. Attachment is in the nature of a proceeding quasi in rem (Banco-Espatol Filipino v. Palanea, 37 Phil. 921, 928) although sometimes referred to as an action in rem (Valdevieso v. Damalerio, 451 SCRA 664, 671). While attachment is a proceeding in rem or quasi in rem, this classification becomes significant when the defendant does not appear in the action as when he is a non-resident who is at the same time outside of the Philippines. In this situation, the need for acquiring jurisdiction over the property or res becomes imperative so r PARTI — PROVISIONAL REMEDIES 13 Rule 57 — Preliminary Attachment the court may have the authority to order that the property be made to answer for the liability of the non-appearing defendant. ‘The Court has, however, clarified that “If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the defendant which the court may find to be due to the plaintiff” (See Banco-Espanol Filipino v. Palanca, 37 Phil. 921, 929 citing Cooper v. Reynolds, 10 Wall., 308). Grant of preliminary attachment is discretionary 1. The grant of the remedy of preliminary attachment is addressed to judicial discretion to be exercised in accordance with the requirements of the applicable rules. There is nothing in Rule 87 which indicates that the grant of a writ of preliminary attachment is a matter of right on the part of the applicant. Whether or not the application shall be given full credit is discretionary upon the court. 2. It is, of course, understood that such discretion is not to be exercised whimsically or oppressively. Also, in determining the propriety of the grant, the court will have to consider the principal case upon which the provisional remedy depends. For instance in one case, a judge was found to have gravely abused his discretion when he issued a writ of preliminary attachment, even if there was no ground for the issuance of the writ based on Sec. 1 of Rule 57 of the Rules of Court. The Court added, as example, that a court would also be acting in excess of its jurisdiction if it issues a writ on the hasis of an affidavit, which does not contain all the allegations mandated by the Rules to support the application for the issuance of the writ (K.0. Gluss Construction Co, Inc. v, Valenzuela, 116 SCRA 563, 567).“ IVIL PROCEDURE, VO ‘THE BAR Strict construction in favor of the defending party; Preliminary sttachment should be resorted to only when necessary and as a Inst. remedy because it exposes the debtor to humiliation and annoyance, It mast be granted only on concrete and specific grounds and nat merely on general averments quoting the words of the rules. Since attachment 18, harsh, extraordinary, and summary in nature, the rules on the application of a writ of attachment must be strictly construed in favor of the defendant (Watercraft Venture Corporation v. Wolfe, G.R. No, 131721, September 9, 2015). Who may avail of preliminary attachment Section 1 of Rule 57 provides that the plaintiff or any proper party mey have the property of the adverse party attached. Clearly, it is not only the plaintiff who. may apply for the issuance of a writ of preliminary attachment. The pertinent provisions of Sec. 1 of Rule 57 also make reference to any proper party. These terms are broad enough to refer also to a defendant who files a counterclaim, cross-claim or third-party complaint. Hence, the proper party may also refer to the counter-claimant, cross-claimant or the third-party plaintiff as long as the application for the writ is supported by the proper ground (For further readings, see Borja v, Platon, 73 Phil. 659, 660) Purpose of preliminary attachment Section 1 of Rule 57 categorically declares thet “x x x a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of ony judgment that may be recovered xx x.” Preliminary attachment is, heneo, designed to seize the properly of the debtor before final judgment and put the same in custodua legis even while the action is pending for the satisfaction of a later judgment. One case more simply puts the purposes of preliminary attachment as follows: “The purposes of preliminary attachment are: (1) to seize the property of the debtor in advance of final PARTI ~ PROVISIONAL REMEDIES 1% Rale 57 — Preliminary Attachment Judgment and to hoid it for purposes of satisfying said judgment x x x; or (2) to aogiire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of suramons on the defendant cannot be effected x x x” Philippine Commercial International Bank v. Alejandro, 533 SCRA 738, 751-752). Stage of the proceedings when preliminary attachment may be applied for 1. An order and writ of prelimiary attachment may be applied for (a) at the commencement of the action, or (b) at any time before entry of judgment (Sec. 1, Rule 57, Rules of Court) If it is applied for at the commencement of the action, the application may be incorporated in a verified complaint alleging all the grounds relied upon and complying with all the requisites for the grant of the application. Here, the application is made even before summons is served on the defendant or even before summons is issued by the court. An application at this stage will result in an ex parte issuance of the writ of preliminary attachment. (Bar 2014) If not applied for at the commencement of the action, the application may be made after service of summons upon the defendant and may even be made at any stage of the proceedings, even after judgment, but before its extry. The stage hefore the entry of the judgment is the last opportunity to avail of the remedy. Since at this stage, the defendant has already been summoned to the action, an application for the issuance of an order of attachment would entail notice to the defendant. 2, Under See. 2 of Rule 36, the date of finality of the judgment or final order shall be deemed to be the date of its entry. Hence, the issuance of the writ may be applied for before the judgment becomes final and executory. After the judgment becomes final and executory, a writ of preliminary16 crv PROCE THE BAR Li URE, VOLUME 81 TURES SERIES, attachment can no longer be obtained because the judgment, by then, has already been entered by operation of the Rules. In the language of the Court: “Rule 57 in fact speaks of the grant of the remedy ‘at, the commencement of the action or at any time thereafter’ ‘The phrase, ‘at the commencenient of the action, obviously refers to the date of the filing of the complaint, — which, as x x x pointed out, is the date that marks ‘the commencement of the action’ and the reference plainly is to a time before summons is served on the defendant, or even before summons issues, What the rule is saying quite clearly is that after an action is properly commenced — by the filing of the complaint and the payment of all requisite docket and other foes — the plaintiff may apply for and obtain @ writ of preliminary attackment upon fulfillment of the pertinent requisites Jaid down by law, and that he may do so at any time, either before or after service of sumimonson the defendant. And this indeed, has been the immemor‘al practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for attachment in the complaint or other appropriate pleading (counter-claim, cross-claim, third- party claim) and for the Trial Court to issue the writ ex arte at the commencement of the action if it finds the application otherwise sufficient in form and substance” (Davwxo Light and Power, Inc. v. Court of Appeals, 204 SCRA 343, 349-350; Emphasis supplied), Kinds of attachments; distinctions (Bar 1975, 1990, 1999, 2012) 1. There are certain types of attachments, to wit (a) preliminary attachment (Bar 2012); (b)_ garnishment (Bar 2012); and (©) levy on execution to satisfy a final judgment (Bar 2012) 2. Preliminary attachment is one issued at the commencement of the action or at any time before entry of PART I — PROVISIONAL REMEDIES " ale 87 — Proliminary Attachment the judgment as security for the satisfaction of any judgment that may be recovered. Here, the court takes custody of the property of the party against whom the attachment is directed pending litigation. 3. Garnishment is a kind of attachment in which the attaching party seeks to subject to his claim either the property of the adverse party, in the hands of a third person called the garnishee, or the money which said third person owes the adverse party. Examples: The deposits of the defendant in a bank; dividends due the defendant in a corporation; wages of the defendant held by the employer; royalties due the defendant in the hands of a publisher. (a) The Court considers garnishment as a specie of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation (Rizal Commercial Banking Corporation v. Castro, 168 SCRA 49, 57). By means of garnishment, the plaintiff reaches credits belonging to the defendant and owing to him from a third person. (Bar 2008) (b) Garnishment does not involve the actual seizure of the property which remains in the hands of the garnishee. Garnishment simply impounds the property in the garnishee's possession and maintains the status quo until the main action is finally decided. Thus, if pursuant to acourt order, the defendant's credit with a stockbroker is garnished, the sheriff cannot order that said credit be paid to the plaintiff or the sheriff upon the garnishment. It is only after the judgment against the judgment obligor has become final and executory that the payment is to be made (See Sec. 15{c], Rule 57, Rules of Court). (Bar 1980, 2008) (c) Jurisdiction over the garnishee is acquired by the mere service upon him of the copy of the writ of garnishment with a notice that his debt to the defendant or other personal property of the defendant under his control or possession is attached pursuant to the writ (See Sec. 7d), Rule 57, Ruses of Court)18 CIVIL PROCEDURE, VOLUME 1 ‘THE BAR LECTURES SERIES (a) Service of summons is not required to bind the garnishee. Thus, it was ruled: “In order that the trial court may validly acquire jurisdiction to bind the person of the garnishee, it is not necessary that summons be served upon him, The garnishee need not be impleaded as a party to the case. All that is necessary for the trial court to lawfully bind the person of the garnishee or any person who has in his possession credits belonging to the judgment debtor is service upon him of the writ of garnishment” (Perla Compania de Seguros, Ine. v. Ramolete, 203 SCRA 487, 451-492). (e) By virtue of the writ, the garnishee will be re- quired to hold the property or the funds in his hands during the pendency of the litigation and at the appropri- ate time, to deliver the same not to the judgment obligor/ defendant but to the new creditor, the judgment obligee/ creditor. Itwasruled that m legal contemplation, garnishment. is a forced novation by the substitution of creditors. ‘The debtor, who is the original creditor of the garnishee is, through service of the writ of garnishment, substituted by the creditor who thereby becomes creditor of the garnishee. Garnishment has also been described as a warning to a person having in his possession property or credits of the judgment debtor, not to pay the money or deliver the property to the latter, but rather to appear and answer the plaintiff's suit (Perla Compania De Seguros, Inc. v. Ramolete, 203 SCRA 487, 491) 4, Levy upon execution is the process employed after the judgment has become executory by which the property of the judgment obligor is set aside and taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. In this process, the sheriff or an officer of she court appropriates the judgment debtor's property pursuant to the writ of execution as a preliminary step to the sale on execution of the property of the judgment debtor i i | | PART I — PROVISIONAL REMEDIES 18 ‘Rule 57 ~ Preliminary Atachment Grounds for the issuance of a writ of preliminary attachment (cases where preliminary attachment is proper) 1. One cannot secure a writ of preliminary attachment inevery situation. The rules governing preliminary attachment enumerate’ specific situations in which the remedy can be availed of (Sec. 1, Rule 57, Rules of Court). 2, Example: A borrowed a substantial amount of money from B. A failed to pay despite demand on the due date. B sued A in the proper court. Is preliminary attachment available to B under Sec. 1 of Rule 87 if he can show that A is already insolvent at the time the action is filed? Preliminary attachment is not available. Insolvency or mere inability of the debtor to fulfill his obligation to pay a debt in an action for a.sum of money is not one of those cases enumerated in See. 1, Rule 57 of the Rules of Court, “xxx Insolvency is not a ground tor attachment, especially when the defendant has not been shown to have committed any act intended to defraud his creditors. To authorize an attachment, at least one of the causes mentioned in the statute must exist. Mere insolvency x x x is not a ground for attachment. A man may be unable to pay his debts in full, and still be doing all in his power to pay them, and, sc long as he furnishes no statutory cause of attachment against him, no attachment will be made against his property [Federal Farm Mortg. Corp. v. Mulder, 280 N. W. 454, 455; Walker v. Hagerty, 20 Neb. 452, 30 N.W. 556].” (Mac Chamorro & Co. v. Philippine Ready Mix Conerete Co., 94 Phil. 1005; See also Aboitiz & Company v. Cotabato Bus Co., 105 SCRA 88, 93). A. Recovery of a specified amount of money or damages 1. One of the cases in which preliminary attachment is proper is: “In an action for the rec: very of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-ccntract,20 CIVIL PROCEDURE, VOLUME IL ‘THE BAR LECTURES SERIES delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his ereditors” (Sec. 1fa], Rule 57, Rules of Court; ltalies supplied). 2. Under the above provision, a party is sued for money or damages, the amount of which is “specified.” That the amount be specified is a clear requirement of the rule. ‘The cause of action need not arise from a contract alone. It may be based upon any of the sources of obligations under ‘Art, 1157 of the Civil Code like law, quesi-contract, delict or quasi-delict. However, where the action is for the recovery of moral damages or exemplary damages alone, preliminary attachment will not lie under the said provision even if the claimant specifies the amount he seeks to recover (Sec. 1, Rule 57, Rules of Court), Hence, it. was held that a writ of preliminary attachment cannot be issued for moral and exemplary damages and other unliquidated and contingent claims (Tasular Savings Bank v. Court of Appeals, 460 SCRA 122, 129-130). The amount of such damages is not for a party to determine. Its assessment is left to the discretion of the court, according to the circumstancos of each case (See Art. 2216, Civil Code of the Philippines). 3. Under See. I(a) of Rule 57, it is not sufficient, for the application for a writ of preliminary attachment, to show that. the party against whom the writ is sought is about to depart from the Philippines. Such fact alone would not justify the issuance of the writ. It must also show that such departure is “with the intent to defraud his creditors.” (Bar 1982, 2011) Establishing these facts are now matters of evidence. ‘The fact that the debtor is a foreigner is not, in itself, a reason to grant the application for the writ. Thus, it was ruled that, a mere allegation that the defendant is a foreigner, without showing that he intends to depart from the Philippines to defraud his creditor, is not sufficient for the issuance of a writ of preliminary attachment (K.O. Glass Construction Co., Inc. v. Valenzuela, 116 SCRA 563, 568-569). Bar 2011) PART I ~ PROVISIONAL REMEDIES a Role 87 ~ Proliminary Attachment B, Action for money or property embezzled (Bar 1982) 1. Preliminary attachment is also available in: “x x x an action for money or property embezzied or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty" (See. 1b], Rule 87, Ruies of Court). 2, ‘The main action, under the provision, is one for the recovery of money or property that has been embezzled by the defendant or fraudulently misapplied or converted to his own use. The act was done in the course of his employment or committed in a fiduciary capacity. It may also be committed by one who has willfully violated his duty. For the writ to be issued, there is no need for a showing that the defendant is concealing, removing, or disposing of his property. Under this provision, it is the character of the office or the duty of the defendant that is to be considered when the acts, giving rise to the cause of action, are performed. For instance, a writ of preliminary attachment is proper in an action against a public officer who misappropriates funds entrusted to him, A fiduciary duty is one “founded in trust and confidence” (Webster's Third New International Dictionary, Unabridged, 1993, 845). 3. The writ may also be issued against a corporate officer who, with abuse of confidence, appropriates corporate funds for his personal use (Walter E. Olsen & Co. v. Olsen, 48 Phil. 238, 242-243). C. Recovery of property! unjustly or fraudulently taken 1. Preliminary attachment may be availed 6f in: “xxx an action to recover the possession of property unjustly or fraudulently taken, detained or converted,2 CIVIL PROCEDURE, VOLUME Tl ‘THE BAR LECTURES SERIES when the property, or any part thereof, has been concealed, retnoved, or disposed of to prevent ite being found or taken by the applicant or an authorized person” (See, fc], Rule 57, Rules of Court). 2. Here, the main action is one for the recovery of the possession of property. The justification for the issuance of the writ, under this provision, is the defendant's act of taking the property unjustly or fraudulently. It may also result from his, act of detaining or converting said property. Aside from any of the acts mentioned, there must also be a showing that the defendant has concealed, removed or disposed of the property, or any part thereof to prevent its being found or taken by either the applicant or an authorized person. This ground does not refer ty a defendant acting in fa fiduciary capacity or to one acting in the course of his employment. It does not also refer to one who has willfully violated his duty. The circumstances of the defendant do not matter under this provision as long as the acts mentioned have been performed. D. Fraud in contracting ur performing an obligation Bar 2011) 1. Preliminary attachment may be obtained in: “x x x an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation ‘upon which the action is brought, or in the performance thereo! (Sec. If), Rule 57, Rules of Court) 2. The basis of the application for a writ of preliminary attachment under this provision is the fraudulent act ofa party in either (a) contracting the debt or incurring the obligation, or (b) in the performance of his obligation. 3. There are wo kinds of frauds contemplated here: first is, dole causante (causal fraud) and second is, dolo incidente (incidental fraud). Dolo causanie is the fraud used to induce another te enter into a contract (Art, 1338, Civil Code). Ivis the fraud employed PART I — PROVISIONAL REMEDIES 23 Rule 87 — Preliminary Attachment in contracting an obligation and renders a contract annullable or voidable (Arts. 1330 and 1390, Civil Code). Dolo incidente is the fraud employed by a party in the fulfillment of his obligation or after the obligation has been contracted. This kind of fraud only obliges the person employ- ing it to pay damages (Art. 1344, Civil Code). 4, Under the former rule (See. i{dj, Rule 57, 1964 Rules of Court), the fraud that justified a writ of preliminary attachment was only the fraud committed in contracting an obligation (dolo causante). It did not include the fraud committed subsequent to contracting the obligation (dolo incidente) or fraud in the performance of an obligation, With the amendment, both kinds of frauds are now included as grounds for the issuance of a writ of preliminary attachment, Under the present provisions of Sec. 1(d) of Rule 57, it is submitted that the willful delivery of counterfeit money in payment of a debt may be considered as a ground for preliminary attachment. This is obviously an act of fraud jin the performance of the obligation. Knowingly issuing a bouncing check to pay a debt may, likewise, be. considered fraud in the performance of the obligation. Under the former rule, such acts were not grounds for a preliminary attachment. Thus, in an early case applying the old rule, aithough the defendant was found to be in bad faith in issuing two (2) sets of bouncing checks in payment of an indebtedness, such bad faith was declared not related to his having incurred the obligation in favor of the plaintiff but, to defendant's failure to perform said obligation. There was, therefore, according to the Court, no ground for the plaintiff to attach the defendant's proyerties on the ground of fraud (Javellana v. D.O. Plaza Enter:rises, 32 SCRA 261, 268). 5. As to fraud in contracting the debt or incurring the obligation, it must be shown that the debtor intended to defraud the creditor at the time the obligation is contracted. Consider this example: Mr. X induced his rich friend, Mr. Y, to grant him a loan using a spurious land title as security. Without the security, Mr. Y would not have extended the loanBy CIVIL PROCEDURE, VOLUME It THE BAR LECTURES SERIES to him. If Mr. ¥ later learns of the fraud and files an action to recover the amount loaned to Mr. X, Mr. Y may apply for @ writ of pre'minary attachment. The fraud committed by Mr. Xis a fraud in contracting the obligation or dolo causante. ‘The fraud must relate to the executicn of the agreement ‘and must be the reason which induced the other party into giving consent which he would not have otherwise given. To constitute aground for attachment, fraud should be committed upon contracting the obligation sued upon. A debt is fraudulently contracted, if at the time of contracting it, the debtor has a preconceived plan or intention not to pay. Fraud is a state of mind and need not be proved by direct evidence but may be inferret from the circumstances attendant in each case but the fraudvient intent not to honor the admitted obligation cannot be inferred from the debtor's inability to pay or comply with the obligations (Philippine Bank of Comariunications v. Court of Appeals, 352 SCRA 616, 622-623; Watercraft Venture Corporation v. Wolfe, G.R. No. 181721, September 9, 2015). ‘The circumstances constituting fraud must be stated with particularity (See. 5, Rube 8, Rules of Cour). Hence, it was held that fraudulent intent is not a physical en- tity, but a condition of the mind beyond the reach of the senses, usually kept secret, very unlikely to be confessed, and therefore, can only be proved by unguarded expres- sions, conduct and circumstances. Thus, the applicant for a writ of preliminary attachment must sufficiently show the factual circumstances of the allaged fraud because fraudulent intent cannot be inferred from the debtor's mere non-payment of the debt or failure to comply sith his obligation, The particulars of such circumstanres nee- essarily include the time, persons, places and specific acts of fraud committed. An affidavit which does not contain tonerete and specific grounds is inadequate to sustain the issuance of such writ. In fact, mere general averments render the writ defective and the court that ordered its issuance acted with grave abuse of discretion amounting to excess of jurisdiction (Watercraft Venture Corporation v. Wolfe, G.R. No. 181721, September 9, 2015). PART I — PROVISIONAL REMEDIES 3 ele 67 — Preliminary Attachment E. Removal or disposal of property with intent to defraud 1. Preliminary attachment is also a remedy available in: “xxx an action against a party who has removed or disposed of his property, or is about to do so, with intent to dofraud his ereditars” (Sec. Ue), Rule 57, Rules of Court) 2, Two elements are required by the rule to justify a preliminary attachment under Sec. 1(e), Rule 57, namely: (a) a party has removed of disposed of his property, or is about to do so, and (b) the acts in letter “a” must be with intent to defraud the ereditor. Hence, mere showing that the debtor has removed or dis- posed of his property is not sufficient to support an application for the issuance of a writ of preliminary attachment. The act must be shown also to have been done with the intent to de- fraud the creditor. Fraud is not presumed. It must be proven. 3. To justify the issuance of an order of attachment, the provision does not require that money or property be embezzled, fraudulently misapplied or converted (Sec. 1[6/, Rule 57), or that the property be unjustly or fraudulently taken, detained or converted (Sec. Ufc], Rule 57), ot that the action is against a party who has been guilty of fraud in incurring the obligation or in the performance of an obligation (Sec. 1{d}, Rule 57). A writ of preliminary attachment under this provision merely requires that it be “an action” (which meens any action) against a person who has removed or disposed of his property, or is about to perform such acts with the intent to defraud his ereditérs. Action against non-residents or on whom summons may be served by publication 1. A writ of preliminary attachment may be obtained in: “x x x an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication” (Sec, 1/f], Rule 57, Rules of Court)2% CIVIL PROCEDURE, VOLUME It ‘THE BAR LECTURUS SERIES 2. “be rule does not solely refer to parties who are non- residents but also to other parties who may be residents but on whom summons by publication may be served. Preliminary attachment may be availed of against their properties. These persons include the following: (a) resident defendants whose identity or where- abouts are unknown under Sec. 14 of Rule 14; and (b) resident defendants who are temporarily out of the country (Sec. 16, Rule 14). 3. Where the identity or whereabouts of the defendant is unknown, Sec. 14 of Rule 14 authorizes summons by pub- lication in any action against him. Hence, the action may be in rem, quasi in rem or in personam. What justifies a prelimi- nary attachment in this case is not the act of the defendant but the fact that he is unknown or that he is nowhere to be found. 4. Where the defendant is a resident of the Philippines who is temporarily out of the country, preliminary attachment of his property may be allowed because the defendant may be summoned by publication in accordance with Sec. 16 of Rule 14 in relation to Sec. 15 of Rule 14 of the Rules of Court. Section 15 of Rule 14, on extraterritorial service of summons, includes summons by publication. 5. The application of the provision becomes more ‘meaningful in an in personam action, and the defendant dces not reside and is not found in the Philippines and, hence, personal and substituted service of summons cannot be effected. Neither can jurisdiction over his person be acquired by summons by publication. ‘The remedy of the plaintiff, in order for the court to acquire jurisdiction to try the case, is to convert the action into a proceeding in rem or quasi in rem by attaching the property of the defendant. Thus, in order for the court to acquire jurisdiction to try actions in personam where the defendant resides ov’ :f and is not found in the Philippines, it becomes PART I — PROVISIONAL REMEDIES a Rule 57 ~ Preliminary Attachment a matter of course for said court to convert the action into a proceeding in rem or quasi in rem by attaching the defendant's property. The service of summons, in this case (which may be by publication coupled with the sending by registered mail of the copy of the summons and the court order to the last known address of the defendant), is no longer for the purpose of acquiring jurisdiction over the person of the defendant but for compliance with the requirements of due process (Philippine Commercial and Industrial Bank v. Alejandro, 533 SCRA 738, 752). (Bar 1983) 6. Recall that under See. 16 of Rule 14, summons by publication may be served in any action commenced against residents temporarily out of the Philippines. Hence, prelimi- nary attachment applies also to such persons. ‘Summons by publication, however, is not the only mode of service of summons available against defendants described in Sec. 16. Since they are residents of the Philippines, they may be served by substituted service under Sec. 7 of Rule 14. It has been ruled that where the defendant is a resident who is temporarily out of the Philippines, attachment of his or her property in an action in personam is not always necessary in order for the court to acquire jurisdiction to hear the case. The Court, in so ruling, quotes Sec. 16, Rule 14 of the Rules of Court which provides that “When an action is commenced against a defendant! who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section.” The Court continues, thus: “The preceding section referred to in the above provision is Section 15 which provides for extraterritorial service — (a) personal service out of the Philippines; (b) publication coupled with the sending by registered mail of the copy of the summons and the court order to the last known address of the detendant; or (c) in any other manner which the court may deem sufficient,VIL PROCEDURE, VOLUME IL LE BAR LECTURES SERIES In Montalban ». Maximo, (131 Phil. 154, 165-166 (1968), however, the Court held that “substituted service ‘ofsummons x xs the normal mode of service cf summons that will confer jurisdiction on the court over the person of residents temporarily out of the Philippines. Meaning, service of summons may be effected by (a) leaving copies of the summons at the defendunt’s residence with some person of suitable discretion residing therein, or (b) by leaving copies at the defendant's office or regular place of business with some competent person in charge thereof. Hence, the court may acquire jurisdiction over an action in personam by mere substituted service without need of attaching the property of the defendant (Underscoring supplied). ‘Thus, in actions in personam against residents temporarily out of the Philippines, the court need not always attach the defendant's property in order to have authority to try the case, Where the plaintiff seeks to attach the defendant's property and to resort to the concomitant service of summons by publication, the same must be with prior leave, precisely because, if the sole purpose of the attachment is for the court to acquire Jurisdiction, the latter must determine whether from the allegations in the complaint, substituted service (to persons of suitable discretion at the defendant's residence or to a competent person in charge of his office or regular place of business) will suffice, or whether there is a need to attach the property of the defendant and resort to service of summons by publication in order for the court to acquire jurisdiction over the case and to comply with the requirements of due process” (Philippine Commercial and Industriai Bank v. Alejandro, 533 SCRA 738, 782). Requisites for the issuance of an order of prel attachment; affidavit and bond required inary 1. An order of attachraent shall be granted only upon the filing cf the requisite affidavit and bond. These must be duly filed with the court before the order of attachment is issued (Sec. 3, Rule 57, Rules of Court), Note that the rule does i PART I — PROVISIONAL REMEDIES 2s Rule 87 — Preliminary Attachment not require a hearing because the writ of attachment may be issued ex parte (Sec. 2, Rule 57, Rules of Court). 2. The required affidavit need not be executed by the applicant. It may be executed by some other person who personally knows the facts (See. 3, Rule 57, Rules of Court) Section 3 of Rule 87 also enumerates what the affidavit of the applicant should contain, 3, Aside from the affidavit executed, the party applying for an order of preliminary attachment must post a bond in the amount fixed by the court and executed to the adverse party. This is called an attachment bond (See Secs. 3 and 4, Rule 57, Rules of Court). Contents of the affidavit 1, The affidavit shall contain the following: (a) That a sufficient cause of action exists; () ‘That the case is one of those mentioned in See. 1 of Rule 57; (c) That there is no other sufficient security for the claim sought to be enforced by the action; and (@) That the amoun’ due to the applicant, or the value of the property the pussession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims (Sec. 3, Rule 57, Rules of Court). 2. ‘The affidavit shall allege all the matters what the rule requires it to contain. In « case, the Court observed that while the applicant may have stated in his affidavit that a sufficient cause of action exists against the defendant, he did not state therein that “the case is one of those mentioned in. Section 1 hereaf; that there is no other sufficient security for the claim sought to be enforced by the action; and that the amount due to the applicant is as much as the sum for which the order is granted above all legal eounter-claims.”0 CIVIL PROCEDUKE, VOLUME It ‘THE BAR LECTURES SERIES ‘The Court held that the failure to allege in the affidavit the requisites prescribed for the issuance of a writ of prelimi- nary attachment renders the writ of preliminary attachment issued against the property of the defendant fatally defective, and the judge issuing it is deemed to have acted in excess of his jurisdiction (K.O. Glass Construction Co., Inc. v. Valenzu- ela, 116 SCRA 563, 571). Effect of the existence of a mortgage Since See. 3 of Rule 57 requires that there must be a showing of the insufficiency of the security for the claim sought to be enforced by the applicant, the writ will not be issued if a real estate mortgage exists to secure the obligation even if, instead of filing an action for foreclosure, an action for a sum of money was filed (See Salgado v. Court of Appeals, 128 SCRA 395), To justify the issance of the writ of preliminary attachment, it must. be shown that the security is insufficient to cover the claim Condition of applicant's bond 1. The bond executed in favor of the adverse party is conditioned upon the payment, by the party applying for an order of attachment, of all costs which the adverse party may be adjudged as entitled to and ail damages which he may sustain by reason of the attachment, if it shall be finally adjudged that the party applying for attachment was not entitled thereto (Sec. 4, Rule 57, Ru'es of Court; For further readings, sue Carlos v. Sancloval, 471 SCRA 266). ‘The damages, which may be claimed against the bond, refers only to damages sustained because of or by reason. of the attachment, not by reason of some other cause. It was ruled that the attachment bond answers only for the payment of all damages which the defendant may sustain if the court shall finally adjudge that the plaintiff was not entitled to attachment. The liability attaches if the plaintiff is not entitled to the attachment because the requirements entitling him to the writ are wanting, or that the facts stated PART I — PROVISIONAL REMEDIES a Rule 87 ~ Proliminary Attachment in his affidavit, or some of them are untrue. Clearly, the defendant can only claim from the bond for all the damages which he may sustain by reason of the attachment and not because of the sale of the attached properties prior to final judgment (China Banking Corporation v. Asian Construction and Development Corporation, 560 SCRA 585, 598) Issuance of the order; ex parte or upon motion with notice and hearing (Bar 178, 1991, 1993, 1996, 2001, 2005) 1. The order of preliminary attachment may be granted upon motion and notice and hearing by the court in which the action is pending, and may even be issued on appeal by the Court of Appeals or the Supreme Court (See. 2, Rule 57, Rules of Court). When the case is on appeal, the judgment, is not yet final and executory and this means that there is yet no entry of the judgment. An order and writ of attachment may be applied for before the entry of judgment (See Sec. 1, Rule 57, Rules of Court). 2, Tt may also be issued ex parte and even before surnmons is served upon the defpndant. However, in this case, the writ may not yet be enforied and validly implemented unless preceded or simultaneously accompanied by service of summons, copy of the complaint, application for attachment, order of attachment and the attachment bond (Davao Light & Power Co., Ine. v. Court of Appeals, 204 SCRA 343, 357; Mangila v. Court of Appeals, 387 SCRA 162, 171-172). The implementation of the writ of attachment without the required jurisdiction over his person is null and void (BAC Mfg. & Sons, Corp. v. Court of Appeals, 200 SCRA 130, 139). An application for an order and writ of attachment may be granted ex parte because it is possible that during the course of the hearing, the party against whom the writ is sought may dispose of his property or abscond before the writ is issued. It has been held that nothing in the Rules of Court makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment (Filinvest Credit v. Relova, 117 SCRA 420, 428). As a matter of fact, a2 CIVIL PROCEDURE, VOLUME iT THE BAR LECTURES SERIES hearing would defeat the purpose of this provisional remedy. The time which such a hearing would take, could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment, issues. Nevertheless, while no hearing is required by the Rules of Court for the issuance of an attachment (Belisle Investment & Finance Co., Inc. v. State Investment House, Inc., G.R. No. 72927, June 30, 1987; Filinvest Credit Corp. v. Relova, 117 SCRA 420), a motion to quash the writ may not be granted without due notice to the applicant and only after hearing (Secs. 12 and 13, Rule 57, Rules of Court) 3. It is not the notice to the defendant that is sought to be avoided but the time which such hearing would take because the defendant may delay the hearing to be able to dispose of his properties (Grate v. Abregar, 241 SCRA 659, 667-668), ‘The Court further explains: x x x th{e] Court ruled that a hearing on a motion or application for preliminary attachment is not generally necessary unless otherwise directed by the Trial Court in its discretion. x x x the Court declared that “(nothing in the Rules of Court makes notice and liearing indispensable and mandatory requisites for the issuance of a writ of attachment.’ The only prerequisite is that the Court be satisfied, upon consideration of ‘the offidavit of the applicant or of some other person who personally knows the facts, that a sufficient eause of action exists, that the case is one of those mentioned in Section 1 (Rule 57), that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order (of attachment) is granted above all legal counterclaims.’ If the court be so sutisfied, the ‘order of attachment shall be granted,’ and the writ shall issue upon the applicant's posting of ‘a bond executed to the’ adverse party in an amount to be fixed by the judge, not exceeding the plaintiff's claim, conditioned that the latter PART — PROVISIONAL REMEDIES a ‘Rule 67 — Proliminary Attachment will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of, the attachment, if the court shall finally adjudge that the applicant was not entitled thereto” (For further readings, see Davao Light and Power, Ine. v. Court of Appeals, 204 SCRA 343, 351). Stages in the grant of pretiminary attachment Jurisprudence explains that the grant of the provisional remedy of attachment has three stages: First, the eourt issues the order granting the application: Second, the writ of attachment issues pursuant, to the order granting the writ; and Third, the writ is implemented. Jurisdiction over the person of the defendant is not necessary in the first two stagi>s. In the third stage, when the writ is to be implemented, she court, must have acquired jurisdiction over the person of the defendant. Without such jurisdiction having been obtained, the court has no power and ‘authority to act in any manner against the property of the defendant (Mangila v. Court of Appeals, 387 SCRA 162, 172). Hence, the rule provides that no levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by the service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines (Sec. 5, Rule 57, Rules of Court). (Bar 2014) Prior or contemporaneous service of.summons (Bar 2005) 1. ‘The writ of attachment is implemented by the sheriff who shall make a levy on attachment pursuant to the writ issued under Sec. 2 of Rule 57. Hewever, under the Rules, the sheriff is not allowed to make a levy on attachment if such levy is not preceded or contemporaneously accompanied, bya CIVIL PROCEDURE, VOLUME nL ‘THE WAR LECTURES SERIES the service on the defendant within the Philippines, of the following: (a)_ service of summons; (b) copy of the complaint; (©) application for attachment; (4) applicant's affidavit and bond; and (©) order and writ of attachment (See. 5, Rule 57, Rules of Court) 2. It is apparent that the service mentioned in the immediately preceding paragraph is necessary to acquire {jurisdiction over the person of the defendant hefore the writ is ‘implemented and to comply with the due process requirements of the law. When the requirement of prior or contemporaneous service shall not apply 1. ‘The rule preventing the sheriff from making a levy on attachment without a prior or contemporaneous service of summons shall not apply in the following eases: (a) the summons could not be served personally despite diligent efforts; (b)_ the summons could not be served by substituted service despite diligent efforts; (c) the defendant is a resident of the Philippines temporarily atsent therefrom; (a) the defendant is a non-resident of the Philippines; and (e) the action is one in rem or quasi in rem (Sec. 5, Rule 57, Rules of Court) ' 2. In any of the above cases, the levy on attachment would be justified even if no prior or contemporaneous service of summons is effected. Without these exceptions, the party against whom the writ is directed would be able to frustrate the ends of justice by the simple expedient of disappearing PART I — PROVISIONAL REMEDIES 38 Rule 67 ~ Preliminary Attachment and intentionally putting himself beyond the reach of court, processes. Notice that most of these exceptions are instances where service of summons by publication may be justified. Duties of the sheriff 1. The sheriff is required to proceed with the attach- ment without delay and with all reasonable diligence unless the party against whom the writ is directed makes a deposit with the court from which the writ is issued, or gives a counter- bond (Sec. 5, Rule 57, Rules of Court), 2. The sheriff enforcing the writ is required to attach the property subject of said writ to await the judgment in the case and its execution, He cannot attach every property of the adverse party but only so much of the property located in the Philippines as may be sufficient ¢ satisfy the applicant's demand and not more (See. 5, Rule 57, Rules of Court). This rule is obviously intended to prevent excessive attachment and abuse in the enforcement of the writ. 3. The sheriff is also precluded from attaching any property exempt from execution (See. 5, Rule 57, Rules of Court) such as those enumerated in Sec. 13 of Rule 39 of the Rules of Court. 4. After enforcing the writ, the sheriff must, likewise, without delay make a return to the court which issued the writ, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant (Sec. 6, Rule 57, Rules of Court). Attachment of real property; growing crops 1. _Keal property or growing crops shalll be attached by the sheriff executing the writ by filing with the Registry of Deeds the following: (a) copy of the order of attachment; (b) description of the proporty attached; and36 CIVIL PROCEDURE, VOLUME It ‘THE BAR LECTURES SERIES (©) notice that the property subject of the writ is, attached (Sec. 7/aj, Rule 57, Rules of Court). 2. The sheriff shall then leave a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province (Sec. 7laJ, Rule 57, Rules of Court). 3. Where the property has been brought under the operation of cither the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the (a) number of the certificate of title, (b) volume and page in the registration book where the certificate is registered, and (c) registered owner or owners thereof (Sec. 7/a/, Rule 57, Rules of Court). Attachment of personal property capable of manual delivery If the property to be attached is personal property capable of manual delivery, the sheriff shall take the property and safely keep it in his custody. He shall issue the corresponding receipt for the property taken (Sec. 7[6], Rule 57, Rules of Court) Attachment of stocks or shares or interest therein Stocks or shares, or an interest in stocks or shares, of any corporation or company shall be attached by leaving with the president or managing agent thereof the following: (a) copy of the writ; and (b) notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ (Sec. 7[c], Rule 57, Rules of Courts, Attachment of bank deposits and similar property not capable of manual delivery (garnishment) 1. _In attaching debts and credits, inciuding bank de- posits, financial interest, royalties, commissions, and other personal property not capable of manual delivery, the sheriff PART I ~ PROVISIONAL REMEDIES 3 Rule 67 — Preliminary Attachment shall leave with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, the following: (a) copy of the writ; and (b) notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ (Sec. 7[d], Rule 57, Rules of Court). 2. The above shall be left: with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent (Sec. 7/d), Rule 57, Rules of Court), : Effect of attachment of debts, credits and similar personal property Section 8 of Rule 57 establishes the rule that the person having posseasion or eontrol of the debts, credits, and similar personal property belonging to the person against whom the attachment is issued shall be liable to the applicant for the amount of the property, debts, or credits. This liability continues until the attachment is discharged or until the judgment recovered by the applicant is satisfied. This liability or responsibility shall cease if the property subject of the writ is delivered or transferred, or the debts or credits are paid to the clerk, sheriff or other proper officey of the court issuing the attachment. Attachment of interest in property belonging to the estate of the decedent 1. A person may have an interest in the estate of a deceased as an heir, legatee, or devise. This interest may be attached. In attaching the interest of the party, against whom attachment is issued, in property belonging to the estate of the8 CIVIL PROCEDURE, VOLUME 1! ‘THE BAR LECTURES SERIES decedent, the sheriff shall serve the executor, administrator or other personal representative of the decedent the foliowing: (a) copy of the writ; and (b) notice that said interest is attached (Sec. 7[e), Rule 57, Rules of Court). 2. A copy of said writ of attachment and notice shall also be filed in the office of the clerk of the court in which said estate is being settled. The same shall likewise be served upon the heir, legatee or devisee concerned (Sec. 7/e], Rule 57, Rules of Court). Effect of attachment of interest in property belonging to the estate of the decedent The attachment of a person’s interest in the estate of the decedent does not have the effect of impairing the powers, of administration of the executor, administrator or personal representative of the decedent. The representative, however, is obligated to report the attachment to the court when a petition for distribution is filed. The property attached shall be delivered to the sheriff making the levy, subject to the claim of the heir, legate or devisee, or any person claiming under him (Sec. 9. Rule 57, Rules of Court) Attachment of property in custodia legis; requirement (Bar 1999) 1. Property in custodéa legis may be subject ofan order of preliminary attachment. The provisions of the last paragfaph of Sec. 7 of Rule 57 authorizes an attachment of property which is already under the custody of the law. What will arise in this, event will be a priority in the liens which means that the first, attachment will have priority over subsequent attachments. The attachraent of a property already in custodia legis merely operates as a lien and does not mean that the attaching court will wrest custody of the property from another court. 2. If the property attached is in custodia legis, the rule requires that a copy of the writ of attachment shall be filed PART I — PROVISIONAL REMEDIES 29 ‘ule 67 — Preliminary Attachment with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of said property (Sec. 7, last paragraph, Rule 57, Rules of Court; Bangko Sentral ng Pilipinas v. Lanzanas, 637 SCRA 475, 485-486). Examination of party whose property is attached or of person indebted to him The rule empowers a court to examine under oath the party whose property is attached for the purpose of giving information respecting his property. Also, all other persons in possession of or controlling any jroperty or credit belonging to the person whose property is attached may also be required to appear and be examined under oath before the court in which the action is pending. After such examination, the tourt may issue an order requiring the delivery to the clerk of court any personal property capable of manual delivery, to await the judgment in the action (Sec. 10, Rule 57, Rules of Court) Sale of property after levy on attachment and before entry of judgment 1, A writ of preliminary attachment is a provisional remedy and its issuance does not have the effect of a final judgment over the property attached. Before the entry of ‘the judgment in the case, the property attached remains in custodia legis and is not to be disposed of in any manner whatsoever. The property remains under the custody of the court to await judgment. The property attached, therefore, cannot be sold during the pendency of the action. This is the general rule. It is, however, subject to an exception under Sec. 11 of Rule 57. 2. ‘There may arise circumstances which would justify the court in authorizing the sale of property attached. After hearing with notice and it appears to the court, for instance, that the property attached is perishable, it may order such property to be sold at public auction. The proceeds of the sale shall be deposited in court to await the judgment in the action. The sale may also be ordered by the court if it determinesCIVIL. PROCEDURE, VOLUME I ‘THE BAR LECTURES SERIES that doing so will serve the interests of all the parties. Note that the order of the court shall be made only after notice and hearing (Sec. 11, Rule 57, Rules of Court) ‘Thus, it was held that an attached property may be sold after levy on attachment and before entry of judgment, whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the attached property is perishable or that the interests of all the parties to the action will be subserved by the sale of the attached property (China Banking Corporation v. Asian Construction and Development Corporation, 550 SCRA 585, 592-593). Remedy of a third person, not a party to the action, whose property is attached (Bar 2000) ‘There may arise a situation where the sheriff attaches the property of a third person whe is not even a party to the action. To attach the property of a stranger to the action is, by all means, highly irregular. Fortunately for such third person, he has some remedies under the Rules 1. Hemay avail of the remedy called terceria by making an affidavit of his title thereto or his right Lo the possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff while he has possession of the attached property, and the attaching party (Sec. 14, Rul 57, Rules of Court). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment unless the attaching party files a bond approved by the court, The sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed (Sec. 14, Rule 57, Rules of Court) ‘The bond in Sec. 14 of Rule 57 (proceedings where property is claimed by third person) is different from the bond in Sec. 3 of the same rule (affidavit and bond). Under Sec. 14 of Rule 57, the purpose of the bond is to indemnify the sheriff PART I — PROVISIONAL REMEDIES a Rule 57 — Preliminary Attachment against any claim by the intervenor to the property seized or for damages arising from such seizure, which the sheriff was making and for which the sheriff was directly responsible to the third party. Section 3 of Rule 57, on the other hand, refers to the attachment bond to assure the return of defendant's personal property or the payment of damages to the defendant if the plaintiff's action to recover possession of the same Property fails (Fort Bonifacio Development Corporation v. ‘Yllas Lending Corporation, 567,SCRA 454, 472). 2. ‘The third-party claim:.nt may also invoke the court's authority in the same case and move for a summary hearing on his claim. Upon application of the third person through a motion to set aside the levy on attachment, the courtshalll order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correetly or not (Ching v. Court of Appeals, 423 SCRA 356, 368-369). 3, May a motion for leave to intervene be made by the third party claimant? It is possible, provided no judgment has yet been rendered in the action? Under the rules, a motion or intervention may be filed any time before the rendition of judgment by the trial court (Sec. 2, Rule 19, Rules of Court). On the other hand, it would not be procedurally possible for a third-party claimant to intervene during the execution stage of the judgment under Rule 29 because, by then, a judgment has already been rendered. Intervention is permitted only before the rendition of judgment by the trial court (Sec. 2, Rule 19, Rules of Court) 4, The third-party claimant is not precluded by Sec. 14 of Rule 57 from vindicating his claim to the property in the same or separate action. Thus, he may file a separate action2 CIVIL PROCEDURE, VOLUME It THE BAR LECTURES SERIES to nullify the levy with damages resulting from the unlawfui levy and seizure, This action may be a totally distinet action from the former case (Ching v. Court of Appeals, 423 SCRA 356, 369). The above remedies are cumulative and any one of them may be resorted to without availing of the other remedies (Ching v. Court of Appeals, 423 SCRA 356, 369) Discharge of attachment; counter-bond and other grounds 1. A writ of attachment already enforced may be discharged in the following ways (a) By filing a motion to discharge the attachment and making a deposit or counter-bond., The first mode is by filing a motion to discharge the attachment, wholly or in part, on the security given. The motion shall be filed by the party whose property has been attached or the person appearing on his behalf. Aside from the ‘Jing of a motion, the movant shall make a cash deposit, or file a counter-bond executed to the attaching party with the clerk of the court where the application is, made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. However, if the discharge is sought with respect to a particular property only, the counter-bond shall be equal to the value of that property as determined by the court (Sec. 12, Rule 57, Rules of Court) After due notice and hearing, the court shall direct that the attachment be discharged (Sec. 12, Rule 57, Rules of Court). Note that the rule does not authorize a discharge of the attachment ex perte. The rule clearly vequires “due notice and hearing.” Also, the mere posting of the counter-bond does not automatically discharge the writ of attachment. It is only after due notice and hearing, end after the judge has ordered the discharge of attachment that the same is, propery discharged PART I — PROVISIONAL REMEDIES 4“ Rule 87 ~ Preliminary Attachment ‘The cash deposit or counter-bond shall secure the payment of any judgment that the attaching party may recover in the action (Sec. 12, Rule 57, Rules of Court). Jurisprudence adds that counter-bonds are also replacements of the property formerly attached, and just, as the latter, may be levjed upon after final judgment (Security Pacific Assurance Corporation v. Tria-Infante, 468 SCRA 526, 536). ‘The purpose of the counter-bond is different from the bond posted to obtain a writ of attachment under Sec. 4 of Rule 87 which is to answer for the costs which may be adjudged to the adverse party and the damages which he may sustain by reason of the attachment. (b) By filing a motion to set aside or discharge the attachment on other grounds without need for filing a counter-bond, Under Sec. 13, Rule 57, Rules of Court, the party whose property has been ordered attached may file a motion with the court in which the action is pending, for an order to set aside or discharge the attachment. ‘The niotion shall be based on any of the following grounds: (a) the attachment was improperly or irregularly issued or enforced; : (b)_ the bond is insufficient; (c)_ the attachment is excessive (but in this case, the discharge shall be limited to the excess); and (a) the property i exempt from execution and, as such, is also exempt from preliminary attachment (See Secs. 2 and 5, Rule 57, Rules of Court). ‘The motion may be filed (j) before levy, (ii) after levy, or (iii) even after the release of the attached property. If the motion be made on affidavits cn the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made (Sec. 13, Rule 57, Rules of Court).“ CIVIL PROCEDURE, VOLUME TI "THE BAR LECTURES SERIES After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attach- ment (See. 13, Rule 57, Rules of Court). A discharge of the attachment must be made only upon notice and after hearing. Ithas been held that an ex parte discharge is a disservice to the orderly administration of justice and nullifies the underlying role and purpose of preliminary attachment in preserving the rights of the parties perdente lite as an ancillary remedy (Peroxide Philippines Corporation v. Court of Appeals, 199 SCRA 882, 891). Effect of the discharge of the attachment Upon the discharge of an attachment, the property attached, or the proceetis of any sale thereof, shall be delivered to the part -aaking the deposit or giving the counter-bond, or to the person appearing on his behalf, The deposit or counterbond shall stand in the plate of the property attached (Sec. 12, Rule 57, Rules of Court) Damages for a wrongful attachment (Bar 1999, 2008) 1. The tenor of Sec. 20 of Rule 57 does not prevent the judgment obligor from recovering damages on account of improper attachment even if the judgment is adverse to bim. Hence, event a party who loses in the main case, but is able to establish a right to damages by reason of improper, ireegular or excessive attachment, may be entitled to damages. It was held that the rule, which guarantees a right to damages incurred by reason of wrongful attachment, has long been recognized in this jurisdiction. Although See. 20, Rule 57 of the 1964 Rules of Court provided that there must be first a judgment on the action in favor of the party against whom attachment was issued before damages can be claimed by such party, the Court, however, subsequently clarified that under the rule, “recovery for damages may be had by the party thus prejudiced by the wrongful attachment, even if the judgment ‘be adverse to him.” The Court adds that “[Tyhe language used Soe ere PART I~ PROVISIONAL REMEDIES 4 ule 57 — Preliminary Actachment, in the 1997 revision of the Rules of Civil Procedure leaves no doubt that there is no longer a need for a favorable judgment in favor of the party against whom attachment was issued in order that damages may be awarded. It is indubitable that even a party who loses the act.on but is able to establish a right to damages by reason of improper, irregular, or excessive attachment may be entitled to damages. ‘This bolsters the notion that the clair for damages arising from such wrongful attachment may arise and be decided separately from the merits of the main action” (Carlos v. Sandoval, 471 SCRA 266, 289-290). Where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the attachment piaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the attachment was not merely wrongful but also malicious, the attachment defendant may recover moral damages and exemplary damages as well (Spouses Yu v. Ngo Yet Te, 514 SCRA 423, 434-435) 2. Damages may be awarded, on account of improper, irregular or excessive attachment. The application for damages must be filed (a) before the trial, or (b) before appeal is perfected, or (c) before the judgment becomes executory. ‘There must be notice to the attaching party and his surety or sureties. The application must set forth the facts showing the applivant’s right to damages as well as the amount thereof. A hearing is required before awarding damages (Sec. 20, Rule 57, Rules of Court), The hearing requirement ties with the indispensable demand of procedural due process. Due notice to the adverse party and its surety setting forth the facts supporting the applicant's right to damages and the amount thereof under the bond is essential. No judgment for damages may be entered and executed against the surety without giving it an opportunity to be heard as to the reality ot reasonableness of the damages resulting from the wrongful issuance of the writ (Carlos v. Sandoval, 471 SCRA 266, 283-284)46 3. If, however, the case is on appeal and the judgment of the appellate court is favorable to the party against whom the attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court with due notice to the attaching party and his surety or sureties. The application for damages has to be filed before the judgment of the appellate court becomes executory (Sec. 20, Rule 57, Rules of Court) Although the application is filed with the appellate court, the application may be allowed by the aprellate court to be heard and decided by the trial court (Sec. 20, Rule 57, Rules of Court) 4, Shovdd the bond or deposit given by the attaching party be insufficient to fully satisfy the award of damages, the party against whom the attachment was issued may recover in the same action the damages awarded to him from any property of the attaching party which is not exempt from, execution (Sec. 20, Rule 57, Rules of Court). q 5. To merit an award of actual damages arising from a wrongful attachment, the attachment defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered ard the amount thereof. Such loss or injury must be of the kund which is not only capable of proof but must actually be proved with a reasonaile degree of certainty. As to its amount, the same must be measurable based on specific facts, and not on guesswork or speculation. In particular, if the claim for actual damages covers unrealized profits, the amount of unrealized profits must be established and supported by independent eviderce of the mean income of the business undertaking interrupted by the illegal seizure (Spouses Yu v. Ngo Yet Te, 514 SCRA 423, 435). Judgment to be included in the main case The judgment for damages shall be included in the judgment on the main case (Sec. 20, Rule 57, Rules of Court) ‘This rule suggests that the application for damages is not to be set up independently of the main action. The rule directs PART I — PROVISIONAL REMEDIES ” Rule &7 — Protiminary Attachment that the recovery of damages shall be in the same action and included in the judgment of the'case. Satisfaction of the judgment out of the property attached; return of sheriff 1. Section 15 of Rule 57 clearly outlines the procedure for satisfying the judgment in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) Ifany balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for. that purpose remain in the sheriff's hands, or in those of the clerk of the court; and (© By collecting from.all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. 2, The sheriff shall forthwith make a return in writing to the court of his proceedings and furnish the parties with copies thereof (Sec. 15 of Rule 57, Rules of Court) 3. If after realizing upon all the property attached, including the proceeds of any debts or credits coliected, and applying the proceeds to the satisfaction of the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment (Sec. 16, Rule 57, Rules of Court).“6 CIVIL, PROCEDURE, VOLUME 1 ‘THE BAR LECTURES SERIE 4. Recovery may also be had on the counter-bond by requiring the surety on the bond to pay the judgment obligee upon demand the amount due under the judgment. The said amount may be recovered from such surety or sureties aftor notice and summary hearing in the same action (See. 17, Rule 57, Rules of Court). 5, Where money has been deposited instead of giving a counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfving the judgmeat, the balance shall be refunded to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to kim or his assignee (Sec. 18, Rule 57, Rules of Court) Rule if judgment is rendered against the attaching party: If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such sheriff's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged (Sec. 19, Rule 57, Rules of Court). — 000 — Rule 58 PRELIMINARY INJUNCTION Meaning of preliminary injunc! 1. Preliminary injunction is an order granted at any stage of an action, prior to the judgment or final order, requiring a party, court, agency or person to perform or refrain from performing a particular act or acts (Sec. 1, Rule 58, Rules of Court; Nerwin Industries Corporation v. PNOC-Energy Development Corporation, 669 SCRA 173, 186, April 11, 2012; Liberty Broadcasting Network, Inc. v. Atlocom Wireless Systems, Inc., G.R. No. 205875, June 30, 2015). If it is availed of to require one to refrain from @ parti- cular act, the preliminary injunction is prohibitory. If it requires the performance of a particular act or acts, the preliminary injunction is mandatory (See Sec. 1, Rule 58, Rules of Court). Thus, if one’s land is threatened to be occupied by another unlawfully, the fling of a main action to prevent the dispossession becomes imperative. This main action would necessarily be an action for injunction. This main action may be coupled with a prayer for the issuance of a writ of preliminary prohibitory injunction to prevent the defendant from performing acts of dispossession in the meantime that the rights of the parties are litigated in the principal action. The latter, a provisional remedy, is distinguished from the main action by the term ‘preliminary.’ Now, if the land of the rightful possessor had alzeady been occupied, let us say, by force, there is, likewise, a need to file a main action called forcible entry to recover the possession of the property. This main action, as mentioned in an early part of this material, may be coupled with a prayer for the issuance of a writ of 650 IVI, PROCEDURE, VOLUME THE BAR LECTURES SERIES preliminary mandatory injunction to restore to the plaintiff the possession of the property during the pendency of the main case. In either situation, the purpose is to keep the plaintiffin possession, ‘Thus, whether the preliminary injunction be prohibitory or mandatory, the objective of the writ is to maintain the pre- vailing state of affairs of the parties prior to the controversy, ie,, the plaintiff is in possession of the land. Without the writ of preliminary injunction, the plaintiff would be deprived of the possession of the property even before the court finally resolves the conflicting rights of the parties. Notice that the use of'a provisional remedy of preliminary injunction, like every provisional remedy, requires a main action. This is because jurisprudence and the Rules “have repeatedly held that, it is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit (Estares v. Court of Appeals, 459 SCRA 604, 618) and subject to the latter's outcome (Dela Rosa v. Heirs of Juan Valdez, 654 SCRA 467, 478). It is a mere preventive remedy and only seeks to prevent threatened wrong, further injury and irreparable harm or injustice until the rights of the parties are settled (Republic v. Cortez, G.R. No, 197472, September 7, 2015). These rights are settled, not iu the provisional remedy, but in the principal action. 2. A preliminary injunction, as the term itself suggests, is merely temporary, subject to the final disposition of the principal action. its purpose is to preserve the status quo of the matter subject of the action to protect the rights of the plaintiff during the pendency of the suit. Otherwise, if no preliminary injunction is issued, the defendant may, before final judgment, do the act which the plaintiff is seeking the court to restrain, This will make ineffectual the final judgment that the court may afterwards render in granting relief to the plaintiff (See Dungog v. Court of Appeais, 408 SCRA 267, 275). Preliminary injunction as an equitable remedy An application for a preliminary injunction is an equitable remedy, and one who comes to claim for equity must do so with PART I — PROVISI )NAL REMEDIES 5 Role 68 — Preliminary tnjunetion| clean hands. It is to be resorted to by a litigant to prevent or preserve a right or interest where there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. An application for a writ, cf preliminary injunction rests upon an alleged existence of an emergency or of a special reason for such a writ before the case can be regularly tried. By issuing a writ of preliminary injunction, the court can thereby prevent a threatened or continued irreparable injury to the plaintiffbefore a judgment can be rendered on the claim (Sps. Nisce v. Equitable PCI- Bank, 516 SCRA 231, 263-255). The Court teaches that this is so because among the maxims of equity are: (1) he who seeks equity must de equity, and (2) he who comes into equity:must come with clean hands (Palm Tree Estates, Inc. v. Philippine National Bank, G.R. No. 159370, October 3, 2012). It is the “strong arm of equity,” an extraordinary peremptory remedy that must be used with extreme caution, affecting as it does the respective rights of the parties (China Banking Corporation v. Sps. Ciriaco, G.R. No. 170038, July 11, 2012). Purpose of preliminary injunction 1. A wit of preliminary injunction is issued by the court to prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied and adjudicated and during the pendency of an action (Manila International Airport Authority v. Rivera Village Lessee Homeowners’ Association, Incorporated, 471 SCRA 858, 379; Jucna Complex I Homeowners Association, Ine. v. Fil-Estate Land, Inc., 667 SCRA 440, 452, March 5, 2012; Kang v. Pagbilao Development Corporation, G.R. No. 195374, March 10, 2014). Hence, in order to protect the rights of the parties before the main action is resolved, there is a need to preserve the status quo. It is well-settled that the sole object of a writ of preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits of the case can be82 ew ROCEDURR, VOLLIME fl BAR LECTURES heard. They are uswally granted when it is made to appear that there is a substantial controversy between the parties and one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case. In other words, they are preservati+. .emedies for the protection of substantive rights or interests, and, hence, not a cause of action in itself, but merely adjunct to a main suit. In a sense, they are regulatory processes meant to prevent a case from being mooted by the interim acts of the parties (Liberty Broadcasting Network, Inc. v. Atlocom Wireless Systems, Inc., G.R. No. 205875, June 30, 2015; Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015). 3. Status quo is defined as the last actual, peaceful, and uncontested status that precedes the actual controversy, that which is existing at the time of the filing of the case Indubitably, the trial court must not make use of its injunctive power to alter such status (Cortez- Estrada v. Heirs of Domingo / Antonia Samut, 451 SCRA 275, 288-289; Pineda v. Court of Appeals, 635 SCRA 274, 283; Spouses Dulnuan v. Metropolitan Bank and Trust Company, G.R. No. 196864, duly 8, 2015). 4, Because a writ of preliminary injunction has the purpose o. preserving the status quo between the parties, courts sometimes issue the so-called status quo order or status quo ante order intended to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy. (Bar 1996) However, unlike a temporary restraining order or a preliminary injunction, a status quo order is more in the nature of a cease and desist order, since it neither directs the doing or undoing of acis as in the case of prohibitory or mandatory injunetive retief. For example, a status quo order to reinstate a person to his former position as school director and curriculum administrator and to direct the undoing of an act already consummated, is improper. The order is the PART I — PROVISIONAL REMEDIES 53 Tale 68 — Preliminary Injunction province of prohibitory or mandatory injunctive relief and not of a status quo order which is limited only to maintaining the last, actual, peaceable and uncontested state of things which immediately preceded the controversy (Oca v. Custodio, GR. No. 174996, December 3, 2014). Grant of a writ of preliminary injunction; not a judgment on the merits “An injunetive writ is not a judgment on the merits of the case, A writ of preliminary injunction is generally based solely on initial and incomplete evidense. The evidence submitted during the hearing on an application for a writ of preliminary injunction is not conclusive or complete, for only a ‘sampling’ is needed to give the trial court an idea of the justification for the preliminary injunction pending the decision of the ease on the merits. An order granting a preliminary injunction is not a final resolution or decision disposing of the case. It is based on a preliminary determination of the status quo and on petitioner's entitlement to the writ. ‘Thus, the findings of fact and opinion of a court when issuing the writ of preliminary injunction are interlocutory in nature and made before the trial on the merits is commenced ox terminated. There may be vital facts to be presented at trial which may not be obtained or presented during the hearing on the application for the injunctive writ. The trial court needs to conduct substantial proceedings in order to put the main controversy to rest” (Recto v. Escaler, 634 SCRA 180, 191; For further readings, see Bank of the Philippine Islands v. Hontanosas, G.R. No. 157163, June 25, 2014). Issuance of the writ as subject to judicial discretion The grant or denial of a writ of preliminary injunction is discretionary upon the trial court because the assessment and evaluation of evidence towards that end involve findings of fact left to the said court for its conclusive determination